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THE NEW JERSEY ORDER AND JUDGMENT SHOULD HAVE BEEN ACCORDED FULL FAITH AND CREDIT IN THE NEW YORK FORECLOSURE ACTION; CRITERIA EXPLAINED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined a New Jersey order and judgment should have been accorded full faith and credit in this foreclosure action:

“A judgment rendered by a court of a sister State is accorded ‘the same credit, validity, and effect, in every other court of the United States, which it had in the state where it was pronounced’ ” … . Our review of the foreign judgment at issue is “limited to determining whether the rendering court had jurisdiction” … . It is undisputed that the New Jersey court had jurisdiction as the defendants appeared in the action and vigorously litigated the matter for years, thus, “inquiry into the merits of the underlying dispute is foreclosed” … and “the merits of [the] judgment of a sister state may not be collaterally attacked” … . Accordingly, a “decree of a sister [s]tate in which [the] parties were subject to personal jurisdiction in that [s]tate is entitled to full faith and credit in the courts of New York” … . Sjogren v Land Assoc., LLC, 2024 NY Slip Op 00009, Third Dept 1-4-24

Practice Point: A New York court’s only function in determining whether a foreign state’s order and judgment should be accorded full faith and credit is assessing whether the foreign court had jurisdiction over the matter.

 

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THE MOTION FOR SUMMARY JUDGMENT WAS PREMATURE (MADE BEFORE ISSUE WAS JOINED) AND SHOULD NOT HAVE BEEN GRANTED; ALTHOUGH NOT PRESERVED THE ISSUE COULD BE HEARD ON APPEAL BECAUSE IT PRESENTED A QUESTION OF LAW THAT COULD NOT HAVE BEEN AVOIDED IF RAISED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for summary judgment which was brought before issue was joined should not have been granted. Although the issue was not preserved for appeal, the Second Department heard the appeal because it presented a pure question of law that could not have been avoided if it was brought up below:

“A motion for summary judgment may not be made before issue is joined and the requirement is strictly adhered to” … . Since H Mart’s motion was made prior to joinder of issue, the Supreme Court should not have granted that branch of the motion which was for summary judgment on the cause of action to recover damages for breach of contract alleging failure to procure insurance … . “Although this argument is raised for the first time on appeal, we reach the argument because it presents a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture” … . Maurizaca v CW Highridge Plaza, LLC, 2023 NY Slip Op 06734, Second Dept 12-27-23

Practice Point: A motion for summary judgment will be denied if made before issue is joined.

Practice Point: An issue that is not preserved for appeal may be decided on appeal if it presents a pure question of law which could not have been avoided if it had been raised below.

 

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THE RESPONDENT CITY HAD TIMELY KNOWLEDGE OF THE ESSENTIAL FACTS SURROUNDING THE BUS-VEHICLE COLLISION AND WAS NOT PREJUDICED BY THE TEN MONTH DELAY IN FILING THE NOTICE OF CLAIM; PETITIONER’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, EVEN IN THE ABSENCE OF AN ADEQUATE EXCUSE (LAW OFFICE FAILURE) (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the respondent city in this bus-vehicle accident case had timely knowledge of the essential facts of the incident and therefore was not prejudiced by the late notice of claim. The court noted that law office failure is not an adequate excuse for failing to timely file a notice of claim, but using that excuse did not mandate denial of the motion:

Supreme Court improvidently exercised its discretion in denying petitioner’s application, as petitioner established that respondents acquired actual knowledge of the essential facts within the statutorily prescribed filing period … . As the record showed, the accident involved an NYCTA-owned bus and an NYCTA driver, and was immediately investigated by an NYCTA supervisor. Therefore, petitioner sustained his burden of showing that respondents would not be substantially prejudiced in maintaining a defense on the merits if he were permitted leave to file a late notice of claim … .

In response to petitioner’s showing, respondents offered no particularized evidence suggesting that they would be prejudiced by the delay. Therefore, respondents have failed to rebut petitioner’s showing … . Clarke v New York City Tr. Auth., 2023 NY Slip Op 06591, First Dept 12-21-23

Practice Point: If the municipality has timely knowledge of the essential fact underlying a claim (here a bus-vehicle accident) and is not prejudiced by the delay, a motion for leave to file a late notice of claim may be granted even in the absence of an adequate excuse.

 

PLAINTIFF DEMONSTRATED DUE DILIGENCE IN ATTEMPTING TO SERVE THE DEFENDANT; PLAINTIFF WAS ENTITLED TO A SECOND EXTENSION OF TIME TO SERVE BY ALTERNATIVE MEANS (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had exercised due diligence in attempting to serve defendant and was entitled to a second extension of time to serve the defendant:

Supreme Court improvidently exercised its discretion in denying plaintiff a second extension to serve Dr. Hanandeh under CPLR 306-b, as plaintiff established good cause for the late service by proffering evidence of diligent efforts to serve the doctor … . Plaintiff attempted service at an Ohio address obtained through investigation, which turned out to be the home of Dr. Hanandeh’s parents and brother, and also attempted service at Dr. Hanandeh’s last known New York address as provided by his former employer, defendant New York City Health and Hospitals Corporation … .

In addition, plaintiff established entitlement to an extension of time in the interest of justice because, in addition to showing that she made diligent efforts to obtain jurisdiction, she made a showing that Dr. Hanandeh did not incur any prejudice by the delay, and in fact has known of the suit since before plaintiff requested the second extension … .

Under the circumstances presented, plaintiff is also entitled to effectuate service by alternative means, as she made a showing that service on Dr. Hanandeh was impracticable, and that service by email was reasonably calculated to apprise him of this action (CPLR 308 …). Dixon v New York City Health & Hosps. Corp., 2023 NY Slip Op 06592, Third Dept 12-21-23

Practice Point: Because plaintiff demonstrated due diligence in attempting the serve the defendant and the lack of prejudice to the defendant, plaintiff was entitled to a second extension of time to serve and service by alternative means.

 

RESTORATION OF AN ACTION TO THE ACTIVE CALENDAR AFTER FAILURE TO FILE A NOTE OF ISSUE IS AUTOMATIC IF NO 90-DAY NOTICE HAS BEEN SERVED AND NO ORDER OF DISMISSAL HAS BEEN ISSUED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to restore the action to the active calendar after plaintiff’s failure to file a note of issue should should have been granted. No 90-day notice had been served and no order of dismissal had been issued:

When a plaintiff has failed to file a note of issue by a court-ordered deadline, restoration of the action to the active calendar is automatic, unless either a 90-day notice has been served pursuant to CPLR 3216 or there has been an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27 … . In the absence of those two circumstances, the court need not consider whether the plaintiff had a reasonable excuse for failing to timely file a note of issue … .

Here, the so-ordered stipulation did not suffice as a predicate notice for dismissal pursuant to CPLR 3216. The restoration of the action to the active calendar should have been automatic. Rosario v Cummins, 2023 NY Slip Op 06547, Second Dept 12-20-23

Practice Point: Here plaintiff failed to file a note of issue by a court-ordered deadline. Restoration of the action to the active calendar is automatic if no 90-day notice has been served and no order of dismissal has been issued.

 

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THE PROCESS SERVER DID NOT EXERCISE DUE DILIGENCE IN LOCATING THE DEFENDANT BEFORE RESORTING TO “NAIL AND MAIL” SERVICE OF PROCESS; COMPLAINT DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint should have been dismissed because plaintiff did not demonstrate the process server exercised diligence because resorting to “nail and mail” service:

The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received” … . “For the purpose of satisfying the ‘due diligence’ requirement of CPLR 308(4), it must be shown that the process server made genuine inquiries about the defendant’s whereabouts and place of employment” … .

Here, the plaintiff failed to demonstrate that the process server acted with due diligence before relying on affix and mail service pursuant to CPLR 308(4) … . The process server averred that he made two attempts to personally serve the defendant at his home before affixing the summons and complaint to the door of the defendant’s home. There was no evidence that the process server made any genuine inquiries about the defendant’s whereabouts and place of employment, which was known to the plaintiff. Niebling v Pioreck, 2023 NY Slip Op 06526, Second Dept 12-20-23

Practice Point: A process server’s failure to exercise due diligence  in trying to locate a defendant before resorting to “nail and mail” service, including making inquiries about defendant’s whereabouts and place of employment, will result in dismissal of the complaint.

 

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THE COMPLAINT SUFFICIENTLY ALLEGED A DEFAMATION CAUSE OF ACTION; THE DEFENDANT ALLEGEDLY TOLD PLAINTIFF’S PHYSICIAN THAT PLAINTIFF WAS BANNED FROM DEFENDANT’S PHARMACY FOR STEALING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had alleged a defamation cause of action and the motion to dismiss should not have been granted. Plaintiff alleged defendant falsely accused him of stealing newspapers from a pharmacy:

The plaintiff alleged, among other things, that in November 2020, he was a customer at a CVS store in Jericho, where the defendant Martin was employed as a pharmacist. The plaintiff further alleged that, on December 3, 2020, Martin informed his physician, inter alia, that the plaintiff was banned from the pharmacy for stealing newspapers on multiple occasions and that she had reported the plaintiff to the police. * * *

… [T]he complaint alleged that the statement that the plaintiff was banned from the pharmacy in question for stealing was made on December 3, 2020. The complaint also set forth the statement allegedly made and to whom the statement was made … . Contrary to the defendants’ contention, “the words need not be set in quotation marks” to state a cause of action to recover damages for defamation … . Moreover, the allegation that the plaintiff “was stealing” “constitutes an allegation of a ‘serious crime’ so as to qualify as slander per se” … . Jesberger v CVS Health Solutions, LLC, 2023 NY Slip Op 06515, Second Dept 12-20-23

Practice Point: The allegation that defendant told plaintiff’s physician that plaintiff was banned from defendant’s pharmacy for stealing sufficiently stated a cause of action for defamation.

 

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PLAINTIFF SUED AN ILLINOIS SCHOOL ALLEGING THAT THE ONLINE COURSES OFFERED BY DEFENDANT SCHOOL DURING THE PANDEMIC CONSTITUTED A TRANSACTION IN NEW YORK WITHIN THE MEANING OF THE LONG-ARM STATUTE; BUT PLAINTIFF DID NOT ALLEGE SHE WAS IN NEW YORK WHEN SHE TOOK THE ONLINE COURSES; DEFENDANT’S MOTION TO DISMISS FOR LACK OF JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not raise a question of fact about whether defendant, an Illinois school, conducted a transaction in New York sufficient to confer long-arm jurisdiction. Because of the pandemic, the courses offered by the school were online. Plaintiff alleged a breach of contract by the school involving a grading issue. A major flaw in plaintiff’s case was that she did not allege she was in New York when she took the online courses:

… [T]he plaintiff failed to show that the defendants purposefully availed themselves of the privilege of conducting activities in New York so as to subject them to long-arm jurisdiction pursuant to CPLR 302(a)(1) … . While the plaintiff attests in her affidavit that since March 2020, she has not taken a class at the defendants’ Illinois location, that the only contact she had with the defendants since that date was either virtually or by telephone, and that none of the facts alleged in her complaint took place in person in Illinois, none of this demonstrates that the defendants were engaged in any activity in New York, let alone purposeful activity. Other than the plaintiff’s allegation that she is a New York resident, there is no other reference to New York in the complaint or in the plaintiff’s affidavit. Significantly, the plaintiff’s allegations are devoid of any indication that she was in New York during the time of the alleged communications with the defendants. Greenfader v Chicago Sch. of Professional Psychology, 2023 NY Slip Op 06513, Second Dept 12-20-23

Practice Point: It is not clear from the decision whether taking an online course in New York offered by a school in Illinois confers long-arm jurisdiction over the school. Granting the school’s motion to dismiss appears to be based upon the plaintiff’s failure to allege she was in New York when she took the online course.

 

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THE MOTION TO AMEND THE COMPLAINT TO CORRECT A TYPO SHOULD HAVE BEEN GRANTED (LABOR LAW 241 AND 241(B) RATHER THAN 240(1)); SUMMARY JUDGMENT CAN BE GRANTED ON AN UNPLEADED CAUSE OF ACTION; HERE THERE WAS A QUESTION OF FACT WHETHER THE FOUR-INCH ELEVATION DIFFERENTIAL WAS DE MINIMIS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to amend the complaint to correct a typographical error should have been granted and noted that a motion for summary judgment can be granted on an unpleaded cause of action. The complaint alleged violation of Labor Law 241 and 241 (b) instead of Labor Law 240(1). The Second Department went on to find that plaintiff was not entitled to summary judgment because there was a question of fact whether the accident was an “elevation-related” event–a cylinder had dropped four inches and injured plaintiff’s finger. The question of fact concerned whether the four-inch height differential was de minimis:

… [T]he proposed amendment corrected a typographical error, did not result in any prejudice or surprise to the defendants, and was not palpably insufficient or patently devoid of merit … . 

We note that, despite the fact that the plaintiff had not yet properly pleaded a Labor Law § 240(1) cause of action at the time that he made a motion for summary judgment on the issue of liability pursuant to Labor Law § 240(1), “summary judgment may be awarded on an unpleaded cause of action if the proof supports such cause and if the opposing party has not been misled to its prejudice” … . * * *

The plaintiff failed to meet his prima facie burden, as he did not prove, as a matter of law, that he sustained the type of elevation-related injury that Labor Law § 240(1) was intended to protect against. Namely, where the cylinder fell only four inches but did so with such force as to crush the plaintiff’s finger, there are triable issues of fact as to whether the elevation differential between the plaintiff and the falling object was de minimis … . Castillo v Hawke Enters., LLC, 2023 NY Slip Op 06505, Second Dept 12-20-23

Practice Point: The motion to amend the complaint to correct a typo should have been granted.

Practice Point: Where the facts support it, a summary judgment motion may be based on an unpleaded cause of action.

Practice Point: Here a cylinder dropped four inches, injuring plaintiff’s finger. There was a question of fact whether the elevation-differential was de minimis.

 

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BECAUSE THE NONPARTY WITNESS, WHO WAS PLAINTIFF’S ASSAILANT, HAD A COMMON NAME AND WAS HOMELESS, PLAINTIFF WAS ENTITLED TO DISCOVERY OF THE WITNESS’S DATE OF BIRTH AS AN AID IN LOCATING HIM; PLAINTIFF WAS NOT ENTITLED TO THE WITNESS’S SOCIAL SECURITY NUMBER HOWEVER (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to the birth date of a nonparty witness who was plaintiff’s assailant’s in the underlying event. Because the witness was homeless and had a common name, the witness’s date of birth would help in locating him. Plaintiff was not entitled to the witness’s social security number, however:

Supreme Court should have granted plaintiff’s request that defendants provide the date of birth of the nonparty witness. “[O]rdinarily the names and addresses of witnesses are a proper subject of disclosure” … . The identity of an active participant in an incident is discoverable because “‘the witness was so closely related to the [incident] that his testimony [became] essential in establishing [its] happening'” … .

Plaintiff seeks disclosure of the date of birth and social security number of the nonparty witness, who was also plaintiff’s assailant in the incident underlying the litigation. Defendants have already disclosed that plaintiff’s assailant, who has a remarkably common name, was homeless. Accordingly, the ordinary disclosure of “names and addresses” is unlikely to assist plaintiff in locating the witness. Disclosure of his date of birth may assist plaintiff in identifying and locating the witness. Defendants are not required to provide the witness’s social security number, however, as courts have recognized a heightened level of confidentiality with respect to an individual’s social security number. Lane v City of New York. 2023 NY Slip Op 06480, First Dept 12-19-23

Practice Point: Here plaintiff was entitled to discovery of a witness’s date of birth as an aid to locating him because the witness was homeless and had a very common name. However plaintiff was not entitled to the witness’s social security number which is protected by a higher level of confidentiality.

 

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